Obama's parental initiative may do more harm than good

To understand how this works, all states require parents who receive Temporary Assistance to Needy Families (TANF) benefits for their children (often mothers) to sign over their rights to collect child support to the states. States then file child support cases against the children’s other parent (often fathers) to reimburse the state for TANF payments. The initiative would require states to seek visitation orders in every case where the state files for child support. It is hoped that this will encourage fathers to engage with their children, and thereby encourage fathers to pay child support.

The initiative poses several problems. Custody cases often increase conflict between parents. Custody cases may require parents to attend multiple court hearings, call relatives, friends, and other community members as witnesses against one another, open their homes to court social workers, and have very personal information put on public display. Custody litigation often creates stress and bad feelings between parents, which can be bad for children. For all of these reasons, courts should be a dispute resolution tool of last resort.

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Where parents are content with informal custody and visitation arrangements or have no interest in visitation, requiring custody litigation may cause more harm than good. Court visitation orders don’t require parents to actually visit with their children. Orders only guarantee parents the opportunity to visit at particular times. Sometimes orders are necessary to ensure that both parents have the opportunity to spend time with their child. A mandate is not required to address this. Parents who want court orders already can file child custody cases when they go to court to address child support.

Several studies have found that half or more of TANF recipients have experienced domestic violence. The initiative recognizes that cases involving domestic violence should be exempted from the program, but identifying these cases is challenging. States have not been successful at identifying TANF recipients with domestic violence histories for other purposes. In one study by the National Law Center on Homelessness and Poverty, states failed to identify 86 percent of TANF recipients who experienced domestic violence. Without reliable safeguards, encouraging greater involvement by fathers who have abused their children’s mothers puts mothers and children at risk.

Requiring low-income families to undergo custody litigation also imposes an unfair burden on a vulnerable segment of our community. A proposal requiring all unmarried parents to obtain child visitation orders in exchange for federal dependent child tax deductions would likely be viewed as an unwarranted government intrusion into family privacy. Low-income families should have the same freedom to choose whether to approach the courts.

The initiative would require parents to litigate custody and visitation in court but would not provide attorneys to help parents with custody cases. In most child support cases brought by states, only states’ interests are represented by counsel. Parents and children have no attorneys. Civil legal service providers can meet only a fraction of the current need for legal assistance and child custody is one of the legal issues in highest demand. Parents without counsel may struggle to navigate court processes and effectively present their cases.

The initiative also would increase court workloads when court resources already are stretched thin and family court dockets are overburdened. Standardized guidelines have simplified child support calculations for courts. Child custody and visitation cases cannot be similarly streamlined; deciding what serves the best interest of each child is too case-specific, and the stakes are too high. The Initiative will pose additional implementation challenges in places like the District of Columbia and New York City where magistrate judges are authorized to handle child support but not custody cases.

Creating programs to encourage fathers to take an active role in parenting is important and commendable. But mandating court intervention into family relationships is not the way to get there.

Martin is co-director of families and the Law Clinic, at the Columbus School of Law, The Catholic University of America, in Washington D.C.